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36 FOREST AVENUE - ZBA 36 FOREST AVE Z 6 M REALTY TRUST 1 v��coxm CITY OF SALEM, MASSACHUSETTS �- k, BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR •� . �`,i`t 10 E ?I � SALEM, MA 01970 TEL. (978) 745-9595 � ^ FAX (978) 740-9846 STANLEY J. USOVICZ, JR. MAYOR ��9? J!l ; 9 A Ill 30 DECISION OF THE PETITION OF Z & M REALTY TRUST REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 36 FOREST AVENUE B4/R2 A hearing on this petition was held July 17, 2002 with the following Board Members present: Nina Cohen, Joan Boudreau, Richard Dionne, Bonnie Belair and Stephen Harris. Notice of the hearing was sent to abutters and others and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. The petitioner is requesting a Variance from density and height requirements to construct a five- unit dwelling for the property located at 36 Forest Avenue located in a B4-R2 zone. The Variances, which have been requested, may be granted upon a finding by this Board that: a. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings and structure involve. b. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioners. c. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district of the purpose of the Ordinance. The Board of Appeal, after careful consideration of the evidence presented at the hearing, and after viewing the plans, makes the following findings of fact: 1.Petitioners own three adjoining properties at the intersection of Canal Street and Forest Avenue. Petitioner operates a business, Bagel World, on the property with frontage on Canal Street. An adjacent lot with frontage on Forest Avenue is used as a parking lot, and a third lot, with frontage on Heresy Street is unused. 2. While the Bagel World property lays within the B-4 zoning district, the other two properties (the lots) lie partly within the B-4 district and partly within the R-2 district. Petitioner wishes to improve the lot by constructing a five- unit residential dwelling thereon, which may be entered from either the Hersey St. or the Forest Ave sides. Petitioner seeks a variance to allow a multifamily use in the R-2 district, and a variance to allow a total of 5400 square feet per dwelling unit where the ordinance required 7500 square feet per unit. Petitioner also seeks a variance to allow a three story building where the ordinance limits construction to 2 1/2 stories. 1 DECISION OF THE PETITION OF Z & M REALTY TRUST REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 36 FOREST AVENUE pagetwo 3. Previously, petitioners sought variances to allow six dwellings units on the three lots, and in March 2002 they were denied the variances they sought. Subsequently, the Planning Board for the City of Salem decided by a vote of 7to 1, that the present plan constitutes a material and substantial change from the earlier plan. The Salem Planning Board decision is dated June 6, 2002 and is incorporated by reference herein. Given the Planning Board's determination, the Zoning Board of Appeal agrees that the petition may properly be heard by us tonight. 4. Petitioner's representative Henry Lucas, Esq. asserted that all parking requirements of of the ordinance will be met by the proposed development. There are garages for each of the two units on Hersey St. and each will also have one off street parking space in a driveway. Each of the three units facing Forest Ave will have on off street parking garage, and each of the three units will have a dedicated parking space in a parking array to be painted on the existing lot. Remaining parking spaces in the Forest Ave lot will be available for the use of Bagel World customers under the terms of an easement granted by the Realty Trust. The business owners will retain responsibility for upkeep of the parking lot and for snow removal 5. Stanley Bornstein, Director of Public Works for the City of Salem spoke in support of the proposed development. It was his testimony that flooding is unlikely to occur on the properties where the residential units are to be built. He spoke on behalf of Stanley Usovicz, Mayor of Salem, who wishes to support the proposed development. Ronald Dumis who is an abutter, also appeared in support of the petition and Mr. Lucas submitted a petition signed by about 10 neighbors who supported the development of the property. 6. There was no opposition to the proposed petition. ' On the basis of the above findings of fact, and on, the evidence presented at the hearing, the Zoning Board of Appeal concludes as follows 1. Special conditions exist which especially affect the subject property but not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship to the petitioner. 3. Desirable relief can be granted without substantial detriment to the public good and Without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. Therefore, the Zoning Board of Appeal voted 5-0 to grant the Variances requested, subject to the following conditions; 1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. y DECISION OF THE PETITION OF Z & M REALTY TRUST REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 36 FOREST AVENUE page three 2. All construction shall be done as per the plans and dimensions submitted and approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Petitioner is to obtain a Certificate of Occupancy. 6. Petitioner shall obtain proper street numbering from the City of Salem Assessors office ad shall display said number so as to be visible from the street. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board. 8. Petitioner is to draft easement plan and submit to Board VARIANCE GRANTED \ July 17, 2002 / OA",-, CSCE„""���\ Nina Cohen, Chairman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11. The Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that is has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal CITY OF SALEM MASSACHUSETTS I�v6�CoA�Q�1 BOARD OF APPEAL vli Y :'F SALEM, MA 3 yl 120 WASHINGTON STREET, 3RD FLOOR CLERK'S OFFICE 1fpa. SALEM, MA 01970 - .r 7W TEL. (978) 745-9595 �rlmsa� FAX (978) 740-9846 STANLEY J. LISOVICZ, JR. 801 APR -2 P I: 3 MAYOR DECISION ON THE PETITION OF Z & M REALTY TRUST REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 36 FOREST AVENUE B4/R2 A hearing on this petition was held on March 20, 2002, with the following Board Members present: Nina Cohen, Chairman, Bonnie Belair, Richard Dionne and Stephen Harris. Notice of the hearing was sent to abutters and other and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. The petitioner is,requesting Variances from Section 5-2(b) and 5-2(f) and density regulations of Article IV of the Zoning Ordinance to allow the construction and use of the premises as a six (6) unit dwelling for the property located at 36 Forest Avenue in a B4- R2 zone. The Variance which has been requested may be granted upon a finding of the Board that: a. Special conditions and circumstances exit which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or structures in the same district. b. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner c. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. The Board of Appeal, after careful consideration of the evidence presented at the hearing and after viewing the plans, makes the following findings of fact: 1. Petitioner seeks variances from density and use regulation to allow construction on this lot of a six unit dwelling, with on site parking for 10 cars. The lot straddles the tive and R-2 two family and automotive) ( Y district line between the B-4 wholesale a ) residential) districts. 2. Petitioner's proposed plan would comply with all dimensional requirements of the R-3 Multifamily district. 3. Petitioner's proposed plan would comply with parking requirements for multifamily dwellings. Each attached unit would include a one- car garage. Two additional off street parking places would be created adjacent to the building, and four dedicated parking places would be marked in a lot owned by an adjacent business, Bagel World, and would be held by the proposed development in the form of a perpetual DECISION ON THE PETITION OF Z & M REALTY TRUST REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 36 FOREST AVENUE B-4/R-2 pagetwo easement for plowing and maintenance of the parking lot by the Bagel World business and its successors in title. 4. Petitioner, through his Attorney Henry Lucas, argued that the limited business visibility on Canal Street constituted a financial hardship to the lot owner. The Board of Appeal did not accept this argument. No other argument was made to show hardship that would accrue to the property owner. 5. Several neighbors spoke in support to the proposed project, on the grounds that they preferred a multifamily residential use to the zoned business use. There were Roland Dumaile, 34 Forest Avenue, Michael Ratigan, 30 Forest Avenue, and Ed Carter, 28 Forest Avenue. One neighbor, Dom Ortins of 24 Forest Ave, spoke in opposition to the density of the proposed project. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows: 1. Special conditions do not exist which especially affect the subject property and not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would not result in unnecessary hardship to the petitioner. 3. The relief requested cannot be granted without substantial detriment to the public good or without nullifying and substantially hardship derogating from the intent of the district or purpose of the Ordinance. Therefore, the Zoning Board of Appeal voted 3 in favor and 1 in opposition to grant the requested variances. Having failed to garner the four affirmative votes required to pass, the motion is defeated and the petition is denied. VARIANCE DENIED MARCH 20, 2002 n ,vn2- L o� Csc �- i Nina Cohen, Chairman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the MGL Chapter 40A and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to MGL Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing passed and no the Certification of the City Clerk that 20 days have p appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owners Certificate of Title. Board of Appeal